Murray v. Board of Com'rs of Washington County

• Decision Date: 03 November 1919
• Docket Number: 9072.
• Citation: 67 Colo. 14,185 P. 262
• Parties: MURRAY v. BOARD OF COM'RS OF WASHINGTON COUNTY.
• Court: Colorado Supreme Court

185 P. 262

67 Colo. 14

MURRAY v. BOARD OF COM'RS OF WASHINGTON COUNTY.

No. 9072.

Supreme Court of Colorado

November 3, 1919

Department 2.

Error to District Court, Washington County; H. P. Burke, Judge.

Suit by George Murray, doing business as the Bank of Akron, against the Board of County Commissioners of Washington county, Colo Demurrers to complaint sustained, and plaintiff brings error.

Reversed and remanded.

A. J. Bryant, of Denver, for plaintiff in error.

Isaac Pelton, of Akron, for defendant in error.

DENISON J.

The plaintiff in error brought suit against the board of county commissioners of Washington county to recover certain taxes paid under protest. He was doing a banking business under the name and style of Bank of Akron.

There were six causes of action. The defendant demurred separately to the first four and collectively to all. All the demurrers were sustained, and plaintiff brings error.

Each cause of action was to recover taxes illegally assessed for one year, the first for the year 1910 and the sixth for 1915.

The alleged illegality consisted in----

(1) That the board of county commissioners, sitting as a board of equalization, had unlawfully assumed the power to assess property which did not appear on the schedule returned by plaintiff. The claim was that such assessment was beyond the duties and powers of the board, because, inter alia, that duty had been delegated by statute to the assessor and the treasurer.

(2) That the board had assumed to assess property that was lawfully assessable to others, to wit: notes secured by mortgage, which, plaintiff claimed, were assessable only in connection with and as one with the mortgaged property under R. S. 1908, § 5542. The defendant claims that that section, on this point, is unconstitutional.

(3) That the board has assessed as the property of plaintiff property that does not exist and debts that he owes, e. g capital, deposits, surplus, undivided profits.

As to the first point, we think the plaintiff in error is right. R S. 1908, §§ 5573, 5670, and 5700.

It is the duty of the assessor to add to the assessment roll any assessable property omitted therefrom, and he may be compelled by mandamus to do so. Aggers v. People, 20 Colo. 348, 38 P. 386.

The statute having confided this function to him, the board of county commissioners cannot perform it. Chase v. Boulder County, 37 Colo. 268, 280, 86 P. 1011, 11 Ann.Cas. 483.

We do not decide the second point, because it is a constitutional question, which would require the full bench, and it is not necessary to determine the case. Gale v. Statler, 47 Colo. 72, 105 P. 858.

Upon the third point it seems clear, according to some of the causes of...